N.M. R. Evid. 11-301
In a civil case, unless a state statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
N.M. R. Evid. 11-301
Committee commentary. - The language of Rule 11-201 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, modified the title of the rule, rewrote the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 301 of the Federal Rules of Evidence.
For conclusive presumption of acceptance of Workmen's Compensation Act by employee, see Section 52-1-6 NMSA 1978. Scope of rule. - This rule imposes only a burden of production on the party against whom the presumption is directed. Mortg. Inv. Co. v. Griego, 1989-NMSC-014, 108 N.M. 240, 771 P.2d 173. Effect of a presumption on appellate review of sufficiency of evidence. - A presumption once raised in both jury and non-jury trials continues to have evidentiary force, regardless of the contradictory evidence presented by the party against whom it is employed. Although the raising of the presumption does not mandate any final result at trial, if the fact finder concludes that the party raising the presumption has prevailed and the appellate court finds sufficient evidence to support the raising of the presumption, the appellate court will not set aside the fact finder's conclusion on appeal. Chapman v. Varela, 2009-NMSC-041, 146 N.M. 680, 213 P.3d 1109. Because "presumption" is technical term, better practice is to describe presumption to the jury in terms as assumed facts and burden of proof. Trujillo v. Chavez, 1979-NMCA-138, 93 N.M. 626, 603 P.2d 736. Jury must find the presumed fact true if, (1) the jury is persuaded of the existence of the basic fact from which the presumed fact is inferred, and (2) the party against whom the presumption operates has failed to show that the nonexistence of the presumed fact is more probable than its existence. Trujillo v. Chavez, 1979-NMCA-138, 93 N.M. 626, 603 P.2d 736. Inference may continue after introduction of contrary evidence. - An inference may continue to operate in an evidentiary sense even after introduction of evidence tending to establish the contrary, and may sufficiently influence the trier of facts to conclude that the presumed fact does exist. In re Estate of Padilla, 1982-NMCA-033, 97 N.M. 508, 641 P.2d 539; Montoya v. Torres, 1991-NMCA-152, 113 N.M. 105, 823 P.2d 905. "Bursting bubble" theory rejected. - The so-called "bursting bubble" theory, under which a presumption vanished upon the introduction of evidence which would support a finding of the nonexistence of the presumed fact, even though not believed, is rejected as according presumptions too slight and evanescent an effect. Trujillo v. Chavez, 1979-NMCA-138, 93 N.M. 626, 603 P.2d 736. The disappearance of a presumption upon the presentation of contrary evidence was eliminated when the Rules of Evidence were adopted. In re Estate of Padilla, 1982-NMCA-033, 97 N.M. 508, 641 P.2d 539. This rule eliminated the "bursting bubble" theory of presumptions, and a presumption now retains evidentiary effect throughout the trial, so as to permit the fact finder to draw an inference of the presumed fact from proof of the basic or predicate fact. Roberts Oil Co. v. Transamerica Ins. Co., 1992 -NMSC-032, 113 N.M. 745, 833 P.2d 222. A marriage is presumed valid; that is, the party attacking it carries the burden of proof and the invalidity must be proven by clear and convincing evidence. To overcome presumption of validity which attaches to a later marriage proof is required of the prior marriage plus the fact that it has not been terminated by death or divorce. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888. Several burdens of proof in one case. - If a party attacking validity of a later marriage by showing continued existence of a predecessor makes out a prima facie case, his adversary is free to attack validity of the predecessor, but in that case has the burden of proof. In resolving issue between predecessor and an even earlier marriage, the presumption of validity would attach to the former, it being the later in point of time. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888. Presumption in favor of natural parents. - Parents have a prima facie natural and legal right to custody of their children, and this right creates presumption that the welfare and best interests of the child will best be served in the custody of the natural parents; burden of proving the contrary is cast on the nonparent. Shorty v. Scott, 1975-NMSC-030, 87 N.M. 490, 535 P.2d 1341. Defendant prejudiced by not being able to retest state's blood alcohol test results. - Where a chemist testifies that defendant's blood alcohol percentage was 0.10 percent and that this is the minimum sufficient percentage to invoke the presumption of intoxication and he further testified that there is tolerance for error and that there was no rechecking by anyone of the results of his test, defendant clearly is prejudiced by not being able to retest the results reached by the State. State v. Lovato, 1980-NMCA-126, 94 N.M. 780, 617 P.2d 169. Presumption that employee's death arose out of employment. - Where trial judge found that employer failed to rebut the presumption that employee's death by shooting arose out of his employment, judge, as fact finder, was entitled to presume that employee's death arose out of his employment but was not required to make this presumption, and upon weighing the evidence, could properly resolve the issue against employee. Mortg. Inv. Co. v. Griego, 1989-NMSC-014, 108 N.M. 240, 771 P.2d 173. Presumption of due execution of will. - A presumption of due execution is not sufficient to create a prima facie case for the proponents of a will. New Mexico is now guided by this rule. In re Estate of Padilla, 1982-NMCA-033, 97 N.M. 508, 641 P.2d 539 Presumption regarding vehicle ownership. - The presumption that the operator of defendant's car was the defendant or the agent and servant of the defendant-owner and that said operator was acting within the scope of his employment by the defendant at the time of the accident ceased to exist upon the introduction of credible and substantial evidence which would support a contrary finding. Payne v. Tuozzoli, 1969-NMCA-033, 80 N.M. 214, 453 P.2d 384. Section 66-3-12 NMSA 1978 creates a presumption that the owner listed in the certificate of title to an automobile, who is also the parent of a driver involved in an accident, is, in fact, the real owner. It is then necessary for the factfinder to determine for purposes of a negligence suit against the parent under the Family Purpose Doctrine, whether the presumption is rebutted by counter evidence. Shryock v. Madrid, 1987-NMCA-083, 106 N.M. 589, 746 P.2d 1121, rev'd on other grounds, 1987-NMSC-106, 106 N.M. 467, 745 P.2d 375. Presumption that settlement creates accord and satisfaction. - While a settlement is presumed to create an accord and satisfaction, the presumption may be rebutted if the appropriate elements are not present, most significantly a meeting of the minds. Bennett v. Kisluk, 1991-NMSC-060, 112 N.M. 221, 814 P.2d 89. Rebutting presumption that properly addressed letter was received. - Defendant may rebut presumption that original letter properly addressed and mailed was received by introducing evidence that it was not received. State Farm Fire & Cas. Co. v. Price, 1984-NMCA-036, 101 N.M. 438, 684 P.2d 524, overruled on other grounds, Ellingwood v. N.N. Investors Life Ins. Co., 1991 -NMSC-006, 111 N.M. 301, 805 P.2d 70. Presumption that move out of state is in best interests of the children. - A sole custodian seeking to relocate with a child is entitled to a presumption that the move is in the best interests of the child, and the burden is on the noncustodial parent to show that the move is against those interests or motivated by bad faith on the part of the custodial parent. Jaramillo v. Jaramillo, 1991-NMSC-101, 113 N.M. 57, 823 P.2d 299. Presumption of adverse use for prescriptive easement. - In plaintiff recreational trail users' appeal of a district court judgment that dismissed with prejudice their claims to a public easement by prescription over defendant landowners' property, while the trial court never explicitly found the "express permission" required to avoid the presumption of adverse use, it did find that the use of the property for purposes such as walking, jogging, and bicycling by neighborhood property owners, their neighbors, and invitees had always been permissive, and presumptions did not dictate a result in a civil trial under this rule. Algermissen v. Sutin, 2003-NMSC-001, 133 N.M. 50, 61 P.3d 176. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). For article, "Estates and Trusts," see 13 N.M.L. Rev. 395 (1983). For article, "Evidence I," see 13 N.M.L. Rev. 407 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 181 et seq. Effect of presumption as evidence or upon burden of proof where controverting evidence is introduced, 5 A.L.R.3d 19. Modern status of the rules against basing an inference upon an inference or presumption upon a presumption, 5 A.L.R.3d 100. Medical malpractice: presumption or inference from failure of hospital or doctor to produce relevant medical records, 69 A.L.R.4th 906. Adverse presumption or inference based on party's failure to produce or question examining doctor - modern cases, 77 A.L.R.4th 463. Adverse presumption or inference based on party's failure to produce or examine that party's attorney - modern cases, 78 A.L.R.4th 571. Adverse presumption or inference based on party's failure to produce or examine witness who was occupant of vehicle involved in accident - modern cases, 78 A.L.R.4th 616. Adverse presumption or inference based on party's failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694. Adverse presumption or inference based on party's failure to produce or examine friend - modern cases, 79 A.L.R.4th 779. Adverse presumption or inference based on party's failure to produce or examine family member other than spouse - modern cases, 80 A.L.R.4th 337. Adverse presumption or inference based on party's failure to produce or examine witness with employment relationship to party - modern cases, 80 A.L.R.4th 405. Adverse presumption or inference based on state's failure to produce or examine law enforcement personnel - modern cases, 81 A.L.R.4th 872. Adverse presumption or inference based on party's failure to produce or examine transferor, transferee, broker, or other person allegedly involved in transaction at issue -modern cases, 81 A.L.R.4th 939. 31A C.J.S. Presumptions § 130 et seq.